Clearwater v. Decker , 20 N.Y. Sup. Ct. 63 ( 1878 )

Per Ouriam:

The evidence had been agreed upon by stipulation and had been submitted to the judge who was trying the case. A motion was subsequently made before him, which was, in effect, a motion to open the case and take further or other evidence. This motion he denied. All the evidence in the action therefore was before the judge. Nothing remained except the argument of counsel. Under these circumstances we think that the plaintiff should not have been allowed to discontinue. The case was in possession of the court for trial. To permit a discontinuance at that time was to permit the plaintiff to -withdraw the case from one judge who had heard (or might have read) the evidence, and to bring on a new action before some tribunal thought to be more favorable.

¥e are referred by the plaintiff to the case of Cummins v. Bennett (8 Paige, 81). There had been no trial in the case; nor had a trial been commenced before the court.

We think the order should be reversed, with costs.

Present — -Learned, P. J., Bockes and Osborn, JJ\

Order reversed with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.